White Collar Roundup - September 2017

Limiting the Scope of Joint-Defense Agreements

In United States v. Krug, the U.S. Court of Appeals for the Second Circuit made it a bit easier to pierce the attorney-client privilege when multiple defendants have a joint-defense agreement (JDA). In the case, co-defendants Raymond Krug, Gregory Kwiatkowski and Joseph Wendel, officers of the Buffalo Police Department, were charged with offenses based on the alleged use of excessive force during the arrest of four individuals. The three co-defendants entered into a JDA in which their defense counsel "participated in meetings together, transmitted emails, and shared legal memoranda and research." While the parties were covered by the JDA, Krug and Kwiatkowski had discussions in a hallway in the courthouse when their attorneys were not present. As trial approached, Kwiatkowski began to cooperate with the government and shared in a proffer session the statements Krug made during the hallway conversation. The government sought to use these statements at trial, and Krug moved in limine to prevent it from doing so. Krug claimed those statements "constituted the mutual sharing of defense strategies, thoughts, and theories that would be privileged pursuant to that agreement." The district court agreed and granted the motion in limine. The government appealed. On appeal, the Second Circuit reversed. It reasoned that the "statements were not made to, in the presence of, or within the hearing of an attorney for any of the common-interest parties; nor did the excluded statements seek the advice of, or communicate the advice previously given by, an attorney for any of the common-interest parties; nor were the excluded statements made for the purpose of communicating with such an attorney." Therefore, it held, they were not covered by any privilege. The court expressed "no view as to whether all such circumstances would invoke the privilege," but it found "nothing in the circumstances here to support the application of the privilege."

Should We All Use Burner Phones When Traveling Overseas?

According to this article in the ABA Journal, attorneys who plan to travel out of the United States might consider using "burner phones" and other disposable devices to avoid compromising confidential client information. As we reported here, U.S. Customs and Border Protection (CBP) might require people — including citizens —entering the United States with electronic devices to unlock those devices to allow CBP officers...

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